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United States v. Nale, 4th Cir. (1996)
United States v. Nale, 4th Cir. (1996)
No. 95-5673
SCOTT NALE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-50108)
Argued: September 27, 1996
Decided: December 3, 1996
Before MURNAGHAN, Circuit Judge, SMITH, United States
District Judge for the Eastern District of Virginia, sitting by
designation, and MICHAEL, Senior United States District Judge for
the Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Smith and Senior Judge Michael joined.
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COUNSEL
COUNSEL: William Carroll Gallagher, CASSIDY, MYERS,
COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia,
for Appellant. Thomas Oliver Mucklow, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON
BRIEF: William D. Wilmoth, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
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OPINION
MURNAGHAN, Circuit Judge:
A Grand Jury returned a four count indictment against Scott Nale
for 1) carjacking, in violation of 18 U.S.C. 2119; 2) using and carrying a firearm in connection with the carjacking offense in violation of
18 U.S.C. 924(c)(1); 3) being a felon in possession of a firearm, in
violation of 18 U.S.C. 922(g); and 4) possession and transportation
of a stolen firearm in interstate commerce in violation of 18 U.S.C.
922(i).
Nale entered into a plea agreement and pled guilty to counts one,
two, and three. Nale was sentenced to 168 months imprisonment on
count one; 60 months on count two to be served consecutively; and
120 months on count three to be served concurrently with count one.
Nale challenges his sentence claiming the trial court erroneously
applied the United States Sentencing Guidelines ("U.S.S.G.").1
I. BACKGROUND
Scott Nale was a former boyfriend of Kimberly Wood. On July 11,
1994, Kimberly Wood and her boyfriend, Steven Cool, returned to
Wood's home. Wood was driving Cool's vehicle. As they pulled into
the driveway, both Cool and Wood noticed Scott Nale standing in
front of the vehicle carrying a firearm. Nale ordered Cool to move
over and Nale got in the truck.
Nale pointed the gun at Cool's ribs and instructed Wood to drive
up the road a short distance. After a brief drive, Nale ordered Wood
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1 We use the November 1993 version of the Sentencing Guidelines, the
version in effect at the time of the instant crimes, in determining the sentences in the instant case. See U.S.S.G. 1B1.11(b).
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to stop the vehicle and instructed Cool to accompany him into the
woods. They retrieved several gym bags that were filled with clothes
and other personal items taken from Wood's home. Nale then ordered
Cool back into the vehicle and ordered Wood to keep driving. After
a time, Nale ordered Cool to exit the vehicle. Wood then drove away
and Cool called the police.
Nale and Wood made some small purchases at a store in Pennsylvania; thereafter, Nale began to drive the truck. Nale and Wood
stopped at a picnic area and Nale got out of the vehicle. Wood
remained in the truck and tried to escape by fleeing in the truck.
Wood had problems getting the truck started, and Nale broke the
truck's window and prevented Wood from escaping. Nale then
ordered Wood to put on long pants. While she was changing, he
forced her into the front seat of the truck and forced sexual intercourse upon her. After the assault, Wood noticed a firearm in Nale's
hand. He asked her to kill him.
Nale kept the handgun and drove to Blackwater Falls. He got a
room for him and Wood for the night. Two days later they stopped
at Cathedral State Park. Wood used the restroom at the park and notified a park worker in the restroom that she had been abducted. Soon
thereafter, sheriff's deputies arrived and apprehended Nale.
Nale pled guilty to the first three counts of the indictment. On
count one, the carjacking charge, the trial court relied upon 2B3.1
of the Sentencing Guidelines, the section pertaining to robbery, to set
Nale's sentencing level. Section 2B3.1 provides for a base sentencing
level of twenty for robbery and an enhancement of two levels if the
offense involved carjacking. U.S.S.G. 2B3.1 (b)(1)(B). The trial
court further enhanced Nale's sentence by four levels since Cool and
Wood were abducted to facilitate the commission of the offense.
U.S.S.G. 2B3.1 (b)(4)(A).2
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2 Nale was sentenced to 60 months on count two for using and carrying
a firearm in connection with the carjacking under 18 U.S.C. 924(c).
The mandatory sentence for violating 924(c) is five years which must
run consecutively with any other sentence.
3
1B1.1 states that abduction means "the victim was forced to accompany an offender to a different location." U.S.S.G. 1B1.1, comment.
(n.1).
Nale claims the movement of the victim of the carjacking (Cool)
was minimal, and that his abduction did not facilitate the offense.
However, the length of Cool's abduction was sufficient since even a
temporary abduction can constitute an abduction for purposes of the
sentencing guidelines. U.S.S.G 2B3.1(b)(4)(A); United States v.
Elkins, 16 F.3d 952, 953 (8th Cir. 1994); United States v. Oliver, 60
F.3d 547, 554 (9th Cir. 1995).
In addition, Nale argues that the abduction did not facilitate the
offense. However, the abduction delayed notification of the police,
and assisted Nale in making a speedier escape. The abduction thus
facilitated the offense and the application of 2B3.1(b)(4)(A) was
proper.
B. Enhancement for Commission of a Sexual Assault
While in Possession of a Firearm
The Sentencing Guidelines provide for a sentence enhancement if
the defendant, "used or possessed any firearm or ammunition in connection with the commission or attempted commission of another
offense." U.S.S.G. 2K2.1(c). The trial court determined that Nale
possessed a handgun while committing a sexual assault, and enhanced
Nale's sentence under 2K2.1(c).
Nale asserts that the gun was not used or possessed"in connection
with" the sexual assault. He argues that the gun was not visible to the
victim, nor was it used as a threat during the sexual assault.
The Fourth Circuit has not identified what is necessary to sustain
a finding that a defendant used or possessed a firearm in connection
with another offense. However, several other circuits have interpreted
the meaning of "in connection with" as it applies to U.S.S.G.
2K2.1(c). United States v. Thompson, 32 F.3d 1, 7 (1st Cir. 1994);
United States v. Condron, 18 F.3d 1190, 1197 (5th Cir. 1994), cert.
denied, ___ U.S. ___, 115 S.Ct. 161 (1994); United States v. Routon,
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stolen immediately before the carjacking took place for the purpose
of committing the carjacking. The trial court's enhancement was
therefore appropriate.
D. Reduction for Acceptance of Responsibility
Nale asserts that he is entitled to a three level reduction under the
Sentencing Guidelines for acceptance of responsibility. We review
the district judge's factual determination regarding a defendant's
acceptance of responsibility under the clearly erroneous standard.
Myers, 66 F.3d at 1372.
The guidelines provide for a reduction in sentencing if the defendant "clearly demonstrates acceptance of responsibility for his
offense." U.S.S.G. 3E1.1. In addition, in order to receive a reduction
under 3E1.1 for acceptance of responsibility, the defendant must
prove by a preponderance of the evidence that he has clearly recognized and affirmatively accepted personal responsibility for his criminal conduct. Myers, 66 F.3d at 1371; United States v. Martinez, 901
F.2d 374, 377 (4th Cir. 1990). "The sentencing judge is in a unique
position to evaluate a defendant's acceptance of responsibility. For
this reason, the determination of the sentencing judge is entitled to
great deference on review." U.S.S.G. 3E1.1 comment (n.5).
In addition, "a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted
in a manner inconsistent with acceptance of responsibility." U.S.S.G.
3E1.1 comment (n.1).
The lower court held that although Nale pled guilty, his statement
did not clearly demonstrate acceptance of responsibility. Nale characterized his actions as an attempt to reconcile with his ex-girlfriend and
failed to admit or express remorse regarding many of his actions. He
characterized the carjacking as a request for a ride. However, Nale
failed to mention that the request for a ride was accompanied by the
brandishing of a firearm.
Nale argues that he accepted full responsibility for his actions when
he pled guilty to the charges. However, merely pleading guilty is not
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sufficient to satisfy the criteria for a downward adjustment for acceptance of responsibility. United States v. Harris , 882 F.2d 902, 905
(4th Cir. 1989); see also, U.S.S.G. 3E1.1, comment. (n.3) (guilty
plea is evidence of acceptance of responsibility,"however, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters
a guilty plea is not entitled to an adjustment under this section as a
matter of right.").
Nale's comments indicate that he did not fully accept responsibility
for his actions. Thus, the trial court's decision denying a reduction for
acceptance of responsibility was not clearly erroneous.
III. CONCLUSION
Therefore, the sentencing decisions of the district court are
affirmed.
AFFIRMED
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